Langston v Department for Business Enterprise & Regulatory Reform

A tribunal reducing compensation for unfair dismissal because of contributory conduct must identify conduct that is culpable or blameworthy. For a compensatory award under section 123(6) of the Employment Rights Act 1996, the tribunal must also consider whether, and to what extent, the conduct was within the employee’s control. The same requirement of culpability or blameworthiness applies when reducing the basic award under section 122(2). Medical condition or other matters outside the employee’s control cannot properly justify a reduction based on contribution. A decision imposing a 100 per cent reduction without addressing those matters is an error of law and must be remitted for reconsideration.

Dr Langston appealed against the Employment Tribunal’s decision following his unfair dismissal claim. The Tribunal had found that his dismissal for some other substantial reason was both automatically unfair under section 98A(1)(a) and substantively unfair under section 98(4) of the Employment Rights Act 1996. Those findings were not challenged.

The appeal concerned the Tribunal’s decision to make no compensatory or basic award. The Tribunal relied on the Claimant’s conduct during a sensitive overseas work visit, the resulting loss of trust and security clearance, medical advice about possible recurrence, and his subsequent difficulty obtaining alternative employment. The central issue was whether the Tribunal had applied the correct legal approach to contribution and culpability.

1. Appeal allowed in part. The Tribunal’s decision to reduce both the compensatory and basic awards by 100 per cent was overturned.
2. For the compensatory award, the Tribunal treated sections 123(1) and 123(6) of the Employment Rights Act 1996 as operating together, at least in part. Where section 123(6) is relied upon, the Tribunal must address whether the employee’s conduct was culpable or blameworthy and, in substance, the extent to which it was within the employee’s control. This principle was established by the authorities including Nelson v BBC (No 2) [1980] ICR 110 and Gibson v British Transport Docks Board [1982] IRLR 228.
3. The Tribunal’s factual findings expressly raised the possibility that the Claimant’s behaviour resulted from an acute transient psychotic disorder or work-related stress. It nevertheless made the 100 per cent deduction without addressing whether the relevant conduct was within his control or was culpable or blameworthy. On those facts, such a deduction, or anything approaching it, could not properly have been made.
4. Section 122(2), concerning the basic award, uses different statutory language, but a reduction on just and equitable grounds based on the Claimant’s conduct likewise requires some element of culpability or blameworthiness. The Tribunal failed altogether to address that question.
5. The Employment Appeal Tribunal could not substitute its own assessment because it lacked the evidence necessary to determine the appropriate deductions. The issue whether any deduction should be made, and if so its amount, was remitted to a differently constituted Employment Tribunal.

• Employment Tribunal: following a hearing in April 2008 and written reasons dated 23 January 2009, found the dismissal unfair but made no basic or compensatory award by applying a 100 per cent reduction.
• Employment Appeal Tribunal: overturned the reductions and remitted the issue of any deductions to a differently constituted tribunal.